GPSOLO March 2010

TRIAL PRACTICEHow to Get Clients to Eat Their Spinach

By Ellen C. Brotman

Many years ago, when I was a new lawyer and a new mother, I found that both my new careers had much in common. Each required me to convince some very stubborn people that my advice was best for them. What I had to learn was how to give advice that could be heard, understood, and followed.

No matter what individual style of persuasion works for you, you need to follow some basic rules in order to give credible, sound advice that your client can hear and follow. First, we can find help in the ABA Model Rules of Professional Conduct. I view these rules as a how-to guide for the difficult dilemmas that arise in the attorney-client relationship. The rules told me that my client could determine the goals of the representation, we should try to agree on the methods, and I had an ongoing obligation to give it to the client straight about both.

Our ability to persuade is measured by how much we are trusted, and trust requires understanding and empathy. Both clients and children need to know that you have heard their story, that you understand how they feel, and that you care about their concerns. I am a firm believer in the power of “active listening.” The corollary rule to active listening is empathizing: Understand your clients’ motivations without judgment. I do not mean that you must endorse all their past or future actions. I mean that you should suspend judgment of your clients so that you can exercise your judgment on their behalf. Letting your client see that you understand and do not judge strengthens the bond between you and helps you arrive at a place where you can work together.

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- This article is an abridged and edited version of one that originally appeared on page 32 of Litigation, Summer 2009 (35:4).- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.- Website:www.abanet.org/litigation.- Periodicals:Litigation, quarterly journal; Litigation News, online magazine and print quarterly; committee newsletters (all Section members may join three committees at no additional cost).- Books and Other Recent Publications:The Litigation Manual: Jury Trials; Model Jury Instructions: Copyright, Trademark and Trade Dress Litigation; The Attorney-Client Privilege and the Work-Product Doctrine, 5th ed .; Internal Corporate Investigations, 3d ed .; Law Makers, Law Breakers and Uncommon Trials; Raise the Bar: Real World Solutions for a Troubled Profession; The Curmudgeon’s Guide to Practicing Law; The Litigation Manual: First Supplement; The Litigation Manual: Depositions; Model Jury Instructions: Employment Litigation, 2d ed .; The Trial Lawyer: What It Takes to Win, DVD/book package; Motion Practice and Persuasion; McElhaney’s Trial Notebook, 4th ed .

For several years, I have represented indigent criminal defendants in federal court. Most of these cases are appointed to me by district court judges and involve difficult clients who have complained, reasonably or not, about their previous court-appointed lawyers. In one such case I met one of my favorite clients, Mr. X. He was accused of participating in a drug trafficking conspiracy. The evidence against him was substantial. In our first meeting, he complained that his previous lawyers refused to discuss trial strategy even though the government had “nothing” on him. Instead, his lawyers had repeatedly tried to persuade him to cooperate against his co-defendants, many of whom were already cooperating against him. On top of all this, Mr. X’s criminal conduct had occurred only a few months after his release from a ten-year stint in state prison on a robbery conviction. I asked Mr. X why he did not want to cooperate. He said, “I’m a lot of things, Miss Ellen, but I’m no snitch.” I did not think that answer was either foolish or stubborn. Mr. X did not have money, education, or employment prospects. When he was released back to the old neighborhood, he quickly took up with his old friends and his old ways. In this situation, I completely approved the strategy choices that his prior lawyers had urged. But what I heard in Mr. X’s response was not bravado or foolishness. He was just a person who had only one thing left: self-respect.

I told Mr. X that I thought the most important thing was to minimize his prison time but that I understood and respected his decision. I explained, however, that I would always be willing to discuss it and that I would act promptly if he changed his mind. I also told Mr. X that I would be happy to take his case to trial and make the government prove it beyond a reasonable doubt. This brings me to my third rule: Timing is everything. With clients, the conversation might go like this: “Next time we meet, we will need to talk about the tax consequences of this,” or “Soon we will need to deal with the forfeiture issues,” or “Eventually we might want to discuss what type of plea offer you would consider taking.” This rule works best when you have been successfully applying the first two rules: listening and empathizing. While I am listening to a client and understanding what he feels, I am also preparing him to hear news he does not want to hear.

Another rule is when faced with a new and challenging situation, demystify it. Explain the process step-by-step in a way that is consistent with your client’s level of sophistication. Once we had fully explored the evidence and litigated some motions together, Mr. X knew that I was fully prepared to try the case. When he heard about cases that he thought would help his case, I read them and explained why they did or did not help. When Mr. X heard about other cases in which individuals in similar circumstances had received probation sentences, I investigated those cases and explained why they were not applicable. When I began to advise him to accept a deal for closer to five years, rather than the possible 12 or 15 years he could face, he was ready to listen. He accepted my advice because he trusted and had faith in me.

One rule I learned from my children is “never let them see you sweat.” Our clients and our children need to hear us speak with authority and certainty. If we are unsure about our advice, we cannot expect it to be followed. Of course, to speak with real certainty and authority, you have to know your stuff. Our clients need to be convinced that we know what we are doing. A thorough grasp of the facts and law should inspire most clients with confidence in your abilities and your advice.

The last rule is pick your battles. This rule came in handy when I represented a woman who, along with her husband, was indicted for willful failure to file tax returns, a misdemeanor that is an exception to the rule that ignorance of the law is no defense. One of the many problems with this case was that, for my client, “the principle” was what mattered, and that is never a good litigation position. I did not want her trial to become a “bully pulpit” for her questionable tax theories. My client’s case was severed from her husband’s. He went first and lost. My theory at trial was that my client’s husband had convinced her that he had a legal position that was defensible and correct. Actually, this was more of a sentencing strategy than a trial strategy, and to be successful, I had to keep her from testifying. I decided that the best way to convince my client was to let her control as much of her defense as possible. Throughout the trial, I involved the client in every decision, but when it came time to make the decision on whether to testify, I advocated strongly for her not to take the stand. After some persuasion, my client agreed not to testify. Ultimately, we lost the trial, but at sentencing I was able to convince the judge that my client was a minimal participant. Rather than 15 months in jail, she received 30 days.

Ellen C. Brotman practices with Montgomery, McCracken, Walker & Rhoads, LLP, in Philadelphia, Pennsylvania; she may be reached at ebrotman@mmwr.com.